[Omissions - "acts" required by
statute cannot be omissions]
D a landlord failed to supply a key to a tenant.

Held: In order to be convicted
of "doing acts calculated to interfere with the peace and comport of
residential occupier with intent to cause him to give up occupation of the
premises" contrary to s1 of the Protection From Eviction Act 1977,
the landlord would have to commit an "act", which was clearly required by
the statute, he could not be guilty by failing to act.

^[Omissions
– the actus reus of murder – where duty situation exists -
medical treatment - best interests of patient to allow to die - consent of
court to be obtained first]Tony Bland seriously injured in the
Hillsboroughdisaster,
was being kept alive only by extensive medical
care (not a life-support machine). He had survived for three years in
persistent
vegetative state (PVS).
He continued
to breathe normally, but was kept alive only by being fed through tubes.
He had no chance of recovery; his doctors (with the support of his family)
sought a declaration from the court that it would be lawful for them to
discontinue treatment so that he might die peacefully.

Held: Treatment
could properly be withdrawn in such circumstances, because the best
interests of the patient did not involve him being kept alive at all
costs.

Lord Goff drew a
fundamental distinction between acts and omissions in this context:

".
. . the law draws a crucial distinction between cases in which a doctor
decides not to provide, or to continue to provide, for his patient
treatment or care which could or might prolong his life, and those in
which he decides, for example by administering a lethal drug, actively
to bring his patient's life to an end . . . the former may be lawful,
either because the doctor is giving effect to his patient's wishes . . .
or even in certain circumstances in which . . . the patient is
incapacitated from stating whether or not he gives his consent. But it
is not lawful for a doctor to administer a drug to his patient to bring
about his death, even though that course is prompted by a humanitarian
desire to end his suffering, however great that suffering may be: see
Cox
(unreported) 18 September 1992 . . . So to act is
to cross the Rubicon
which runs between on the one hand the care of the living patient
and on the other hand euthanasia."

In this case feeding
him was treatment and that treatment would not cure him and therefore was
not in his best interests.

It was lawful for D's
doctors to stop feeding him artificially.

See also
Frenchay Healthcare NHS Trust
v S [1994] CA. Similar issues can arise in respect of the very elderly
or in respect of babies born with very severe mental or physical
handicaps, especially where major (and possibly repeated) surgery would be
needed to keep them alive see Re J [1991].

It was lawful for D's doctors to stop
feeding him artificially.
The court had no option but to make a decision one way or the other.

[Omissions - special
relations - death of child - manslaughter]
D was a member of the sect known as
the "Peculiar People"
who believed that all resort to medical as opposed to spiritual aid in
illness was sinful.

Held:
The legislation then in force
strengthen the law protecting children.

Lord Coleridge CJ:

'By wilfully neglecting, I understand an intentional and deliberate
abstaining from providing the medical aid, knowing it to be obtainable.'

Bramwell B:

'... the statute imposes an absolute duty
upon parents, whatever their conscientious scruples may be. The
prisoner, therefore, wilfully--not maliciously, but intentionally,
disobeyed the law, and death ensued in consequence. It is, therefore,
manslaughter.'

[Omissions - actus
reus of breach of official duty - police]
D, whilst on duty and in uniform some
30 yards away from the entrance to a club, from which he saw a man
ejected. Shortly afterwards there was a fight involving cries and screams
and the man was beaten and kicked to death in the gutter outside the club.
He then left without calling for assistance or summoning an ambulance.

Held:
Lord Widgery:

"The allegation made was not of mere
non-feasance
but of deliberate failure and wilful neglect. This involves an element
of culpability which is not restricted to corruption or dishonesty but
which must be of such a degree that the misconduct impugned is
calculated to injure the public interest so as to call for condemnation
and punishment."

Guilty
of the common-law offence of wilful misconduct in public office.

^[Omission - cannot
constitute a battery - course of conduct] D was
directed by PC Morris to park his car. D accidentally drove his car on the
policeman’s foot. The PC let him know what he had done and asked him to
move off his foot. D then refused to move off the PC’s foot.

Held:
An assault is any act which intentionally or possibly recklessly causes
another person to apprehend immediate and unlawful personal violence.

James:

‘A mere omission to act cannot amount to an
assault.’

‘For an assault
to be committed both the elements of actus reus and mens rea
must be present at the same time.’

‘It is not
necessary that mens rea should be present at the inception of the
actus reus; it can be superimposed upon an existing act.’

‘On the other
hand, the subsequent inception of mens rea cannot convert an act
which has been complete without mens rea into an assault.’

Where an assault
involved a battery, it matters not whether the battery is inflicted
directly by the body of the offender or through the medium of some weapon
or instrument controlled by the action of the offender. To constitute this
offence, some intentional act must have been performed; a mere omission
to act cannot amount to an assault.

If the act, as
distinct from the results thereof, is a continuing
act, there is a continuing threat to inflict unlawful force. If the
assault involves a battery and that battery continues, there is a
continuing act of assault.

^[Omissions - property offences
included - deception - an act of omission - obtaining exemption from
or abatement of a liability]
D evaded a liability by deception (Theft Act 1978 s 2). He
avoided paying for tests by dishonestly failing to tell the hospital that
the patients were private. D a consultant gynaecologist and head of an NHS
department also ran a private practice from home. D could have agreed with
the NHS that he would pay for the tests and recoup the money from his
private patients.

Held:
If D had to give relevant information to the hospital and if he
dishonestly and deliberately did not, with the result that his patients or
himself were not charged for the tests, then the offence is complete.

^[Omissions
– the actus reus of murder – where duty situation exists -
medical treatment - "best interests of patient" to allow to die - consent
of court to be obtained first]
D, hospital. S, 24 year old in
PVS from drug overdose
with the result that he suffered acute and extreme brain damage. Feeding
tube became detached consultant recommended to do nothing.

Held: There was
no reason to question the conclusion of the consultant in this situation
of acute emergency. It was in the patient's best interest to allow him to
die by not taking surgical action to replace the tube (an omission).

[Omissions – duty
situations– the actus reus of murder]
D and his common law wife failed to feed the man's 7 year-old child,
Nelly, and she died from starvation. The woman hated Nelly, and was
clearly the moving force.

Held: Where
there is the duty to act, failure to do so can lead to liability even for
murder if the necessary mens rea is present.

The woman was held to
be liable because, while the child was not hers, she was living with the
man and had accepted his money for food.

The courts regarded the
parent's duty towards a young child as so self-evident as not to require
analysis or authority.

^[Omission -
manslaughter - distinction between unlawful commission and omission –
existence of duty – advertence
needed]
D lived with her aunt, who was suddenly taken ill with gangrene in her leg
and became unable either to feed herself or to call for help. D did not
give her any food, nor did she call for medical help, even though she
remained in the house and continued to eat her aunt's food. The aunt's
dead body was found in the house decomposing for about a week.

Held: A duty was
imposed upon D to supply the deceased with sufficient food to maintain
life, and that, the death of the aunt having been accelerated by the
neglect of such duty.

Lord Coleridge, CJ:

"It would not be correct to say that every moral obligation involves a
legal duty; but every legal duty is founded on a moral obligation. A
legal common law duty is nothing else than the enforcing by law of that
which is a moral obligation without legal enforcement."

‘In this case, as in most cases, the legal duty can be nothing else than
the taking upon oneself the performance of a moral obligation’

^[Omissions - rape - continuing act principle]
D broke into a young woman's flat and twice raped her. D claimed that the
woman consented or he honestly believed that she was consenting. On the
second occasion after he had penetrated her he became aware that she was
not consenting but he did not desist from intercourse (an omission to
withdraw).

Held:
Sexual intercourse was complete upon
penetration in the sense that it had come into existence, it was a
continuing act only ending with withdrawal; that since rape is defined as
"having" intercourse without consent a man was guilty of rape within the
section if he continued intercourse after he realised that the woman was
no longer consenting.

^[Omissions - duty
to avert danger of D's own making]
DD drug dealers supplied heroin to a 15-year-old girl. It became apparent
the girl needed medical attention but the DD left her alone, she died. The
next day they dumped her body on waste ground.

At trial DD were convicted of
manslaughter by omission to summon medical assistance.

Held: Extending
the duty of a drug dealer to summon medical assistance for a person whom
he supplied heroin and who subsequently died would be too wide an
extension.

^[Omissions
- death of child not automatically manslaughter]
D a man of low intelligence, was alleged to have neglected his baby
daughter by failing to summon medical assistance when she became ill. The
child died some 10 days later of dehydration and gross emaciation. The
woman with whom D had been living had four other children and was of
subnormal intelligence. D stated that he had told her to take the child to
the doctor, but she had not done so because she was afraid that the child
would be taken into care.

The defendant was
charged with manslaughter and wilful neglect contrary to s.1(1) of the
Children and Young Persons Act, 1933.

Held: Phillimore
LJ was of the opinion that there needs to be a higher degree of
culpability or blameworthiness for crimes committed through omission, than
for crimes where there has been a positive act.

(1) D ought to have realised the possible consequences of his failure to
call a doctor; the sole question was whether his failure to do so was (a)
deliberate, and (b) the cause of the child’s unnecessary suffering or
injury to health;
(2) A clear distinction was to be drawn in relation to an act of
commission and an act of omission; mere neglect, even though deliberate,
which caused injury to a child’s health and resulted in its death, did
not necessarily constitute manslaughter where accused had failed to
foresee the consequences of his neglect.

Guilty
of wilful neglect, not guilty of manslaughter the mental element of the
offence had not been established.

^[Omissions -
situation created by D]
D a vagrant was sleeping in a building, and fell asleep on his mattress.
When he woke up, he saw that his cigarette had caused the mattress to
smoulder. Instead of calling for help, just moved into another room. The
fire flared up and spread.

Held: He was
convicted of arson, not for starting the fire but for failing to do
anything about it.

Lord Diplock:

"...I see no rational ground for excluding from conduct capable of
giving rise to criminal liability, conduct which consists of failing to
take measures that lie within one's power to counteract a danger that
one has oneself created, if at the time of such conduct one's state of
mind is such as constitutes a necessary ingredient of the offence. I
venture to think that the habit of lawyers to talk of "actus reus,"
suggestive as it is of action rather than inaction, is responsible for
any erroneous notion that failure to act cannot give rise to criminal
liability in English law."

[Omission - actus reus - handling
stolen property]
D innocently
received from his son some money to pay into the D's bank account for safe
keeping, and the father, having paid it in on Friday, discovered on
Saturday that his son had stolen it.

Held: The fact that until
Wednesday D did nothing whilst he wondered what to do amounted to handling
by " dishonestly undertaking the retention of the property by or for the
benefit of another " so, in effect, making him guilty by omitting to
report his son to the police.

[Omission - the right to die - competent adults]
D the hospital caring for Ms B. She wanted her artificial
ventilation switched off. As a competent adult she could decline
medical treatment. Ms B was tetraplegic, and paralysed, but she was able
to move her head and speak. She knew would almost certainly result in her
death.

D argued "ambivalence" evidenced by the fact that Ms B had told the
doctors that she was glad that they had not followed her earlier advance
directive (living will).

Held:
Dame Elizabeth Butler-Sloss criticised the attitude of the doctors. Since
Re T (adult: refusal of medical treatment) a
competent adult may refuse medical treatment, even if the likely result
will be their own death. Refusal may be for reasons which are rational,
irrational, unknown or non-existent. This right has been confirmed in
Airedale NHS Trust v Bland
[1993] HL and Re MB (an adult: medical treatment) [1997].
Moreover, there is a presumption of capacity, and it is for those
asserting the right to override the patient’s wishes to establish
incapacity, rather than for the patient to establish her own capacity:
Re C (adult: refusal of medical treatment).

^[Omissions - refusal of amputation - patient suffering severe mental
disorder - not understanding effects of refusal of treatment] D a secure hospital where C, a chronic paranoid schizophrenic was
detained. C had an ulcerated gangrenous foot requiring amputation of
the leg below the knee, otherwise his chances of survival were small. C
refused his consent to amputation. Other treatment, improved his
condition. However, the hospital refused to give an undertaking that the
leg would not be amputated at some time in the future.

Held: Although C was incapable of fully understanding the reasons
for the amputation, an individual was entitled to turn to the courts to
determine if he was capable of refusing or consenting to medical
treatment. That extended to a future amputation by any hospital, without
his written consent.

J,
born prematurely, suffered brain damage and was ventilated more than once.
At best he was likely to have a considerably shortened life expectancy,
would be a serious spastic quadriplegic, without sight, speech or hearing.
His only likely normal reaction was that of pain. He might suffer
respiratory collapse requiring further resuscitation.
(For reasons unconnected with his clinical condition he had been made a
ward of court)

Held: Although there was a strong presumption in favour of the
preservation of life, no principle of public policy regarding the sanctity
of life displaced the paramountcy of J's best interests; and that
accordingly even though J was not terminally ill the court might in
appropriate circumstances withhold consent to life-saving treatment.

[Omissions -
duty to provide medical treatment -refusal
of blood transfusion - "patient's best interests"] T aged 21 was
admitted to hospital following a road traffic accident, she was pregnant.
When only her mother (a Jehovah's Witness) was with her, she stated
spontaneously to a nurse - and later the midwife and a doctor - that she
did not want a blood transfusion. Later a decision was taken to deliver
the child by Caesarean section. She signed a form which was neither read
nor explained to her, signifying her refusal of consent to blood
transfusions. Her child was stillborn and her condition deteriorated. A
blood transfusion was needed but not given because of her expressed
wishes.

Her father, supported by
her boyfriend, applied to the court to allow a transfusion in the absence
of her consent. The judge, decided that because of her condition and the
effect of the medication she had not been fully rational when she signed
the form. He allowed the father's application.

A transfusion was given
forthwith.

Subsequently the judge
found that T had been lulled into a sense of false security by the
hospital staff and been misinformed about alternative procedures. He
concluded that her refusal did not extend to the situation as it had
developed.

Held:
Although an adult patient was entitled to refuse consent to treatment
irrespective of the wisdom of his decision, for such a refusal to be
effective his doctors had to be satisfied that at the time of his refusal
his capacity to decide had not been diminished by illness or medication or
by false assumptions or misinformation, that his will had not been
overborne by another's influence and that his decision had been directed
to the situation in which it had become relevant; that where a patient's
refusal was not effective the doctors were free to treat him in accordance
with their clinical judgment of his best interests; that in all the
circumstances, including T's mental and physical state when she signed the
form, the pressure exerted on her by her mother and the misleading
response to her inquiry as to alternative treatment, her refusal was not
effective and the doctors were justified in treating her on the principle
of necessity; and that, accordingly, the judge's order had been properly
made.

[Omissions - duty to
provide medical treatment -16-year-old girl - treatment for anorexia
nervosa - "patient's bets interest" required her treatment]
W was in the care of the local authority (LA) following the death of her
parents. She developed symptoms of anorexia nervosa. Contrary to her
wishes and the opinion of the consultant attending her, the LA sought the
court's permission to transfer her to a unit specialising in eating
disorders and treatment. Being 16, W claimed she had the same right as an
adult to refuse medical treatment and claimed the court could not override
her decision.

Thorpe J found that
although W had sufficient understanding to make an informed decision she
should, nevertheless (because of the medical evidence) receive
medical treatment without her consent.

Held: A minor
who had attained the age of 16 had an absolute right to give consent (or
not) to medical treatment, as effectively as if he were an adult. A
minor of any age who had sufficient maturity might consent to - or refuse
- treatment but he could not overrule consent given by the court.

The court would take
particular account of the minor's wishes, the importance of which
increased with his age and maturity, but would override them where his
best interests so required.

Having
regard to the nature of W's illness and to the serious deterioration in
her condition, her best interests required the court to direct her
immediate transfer to and treatment at the new unit without her consent.

[Omissions - refusal
to answer PC's questions - not wilful obstruction of PC]D was seen in the early hours of the morning behaving suspiciously in
an area where burglaries had occurred. He refused to say where he was
going or where he had come from. He refused to give his full name and
address. He refused to accompany the police to a police box for
identification purposes, saying, "If you want me, you will have to arrest
me". He was arrested and charged with wilfully obstructing the police
contrary to s. 51 (3) of the Police Act 1964.

Held: Although every citizen had a moral or social duty to assist
the police, there was no legal duty. D was entitled to decline to
answer the questions and to accompany the police officer to the police
box.

^[Omissions
- assault - actus reus - inactivity by D - an
omission can amount to the
actus reus of an assault - creating dangerous situation]
D injured a woman police officer by allowing her to search him, knowing he
had hypodermic needles in his pockets which stabbed her. D denied having
any needles or sharps when asked.

D was
convicted by the Magistrates, but acquitted at Crown Court. On appeal by
way of case stated from the Crown Court, prosecutor's appeal was allowed.

Held: Where someone created a danger and thereby exposed another to a reasonably foreseeable
risk of injury, there was an evidential basis for the
actus reus of an assault occasioning actual bodily harm.

D had “created a danger by an act … that
act was a continuing act”. The risk of injury was foreseeable.

[Omissions -
wilfully]
D, charged with the manslaughter of his son, belonged to a sect called
"Peculiar People" who
objected on religious grounds to calling in the medical aid which would
have prolonged (and probably saved) the child's life.

Wills J, whose
direction was upheld on appeal, had told the jury

'... there could be no doubt that the prisoner had wilfully and
deliberately abstained from calling in medical assistance, though he and
those about the child were aware for some considerable period before its
death that it was in a state of great danger, and that therefore the
question was narrowed down to whether his failure to procure medical aid
could be "called neglecting the child so as to cause serious injury to
its health."'

Lord Russell CJ stated
that

'"Wilfully" means that the act is done deliberately and intentionally,
not by accident or inadvertence, but so that the mind of the person who
does the act goes with it'.

Held: The intentional failure of
a person, who had the necessary means to procure medical aid for a child
in his care or charge, who was, to the knowledge of such person, in a
dangerous state of health, and for whom medical aid and medicine were
essential things that reasonably careful persons would have provided for
children in their care, was evidence of ‘wilful neglect’ within Prevention
of Cruelty to Children Act 1894 s 1 (repealed), and if the jury found that
the death of the child was caused or accelerated by want of medical aid,
such person was guilty of manslaughter. It made no difference that such
person believed that to call in medical aid would be wrong, as being
contrary to the teaching of the Bible, or as showing want of faith.

[Omissions - duty of care - does not extend to 18 year old]
D the mother of a girl aged 18 who died during childbirth. During labour
she was taken into the house of her stepfather during his absence. The
mother omitted to obtain the assistance of a midwife, and her daughter
died. There was no evidence that the mother had the means to pay the
midwife.

Held: She was not legally bound to procure the aid of a midwife,
and she could not be convicted of manslaughter for not doing so,
there being no duty toward a daughter aged 18.

Erle, CJ:

"
Here the girl was beyond the age of childhood, and was entirely
emancipated."

[Omissions - duty of
husband to his wife]
D the husband of a woman who gave birth to a stillborn child at home,
delivered by her husband. D wanted to get medical attention for her but
she would not allow this. Three days later when she became unconscious, D
called the doctor, who did not arrive until after she died. The medical
evidence was such that if a doctor had been summoned earlier the woman
might not have died.

Held: At the trial the judge instructed the jury that D owed a duty
to his wife. The jury could not agree upon the charge of manslaughter and
was discharged from giving a verdict.

[Omissions -
inactivity can be an act]
D was sitting on a chair when an eight-year-old girl put her hand on his
penis outside his trousers for about five minutes. The pressure of the
child's hand caused him to have an erection. He remained inactive
''throughout and did nothing to encourage the child, although he did not
remove her hand.

Held: Where a
man deliberately allowed a child to let her hand remain on his penis for a
substantial period he would be guilty of the offence charged if the jury
were satisfied that the particular act or acts amounted to gross
indecency.
LCJ:

"...we think that such inactivity can nevertheless amount to an
invitation to the child to undertake the act."

"Suppose a man has done this on a number
of occasions with a child, and suppose on a later occasion the child
comes into the room. The man is sitting there and the child, hoping to
get a reward (which was given in the instant case) proceeds to go and
fondle the man's private parts. Is it going to be an answer for him to
lie back and say " No, I am not moving; I am not active; I am not
committing an offence " ? If the circumstances justified the view that
his conduct amounted to an invitation to the child that she was to
continue the act, then it is clear that is sufficient activity to
justify a conviction."

The matter is dealt with in general
terms in Professor Glanville Williams' book Criminal Law, The General
Part (2nd ed. 1961) at p. 3 where he says:

" In some instances an omission will
create criminal responsibility without any positive act. The prohibition
of omissions presents greater legislative problems than the prohibition
of positive acts .... The legal duty to act, therefore, is a
circumscribed and it must be positively laid down by the law. It is
possible for the law to provide that whoever does so-and-so shall be
punishable . . . ."

The matter is dealt with in general terms
in Professor Glanville Williams' book Criminal Law, The General Part
(2nd ed. 1961) at p. 3 where he says: " In some instances an omission
will create criminal responsibility without any positive act. The
prohibition of omissions presents greater legislative problems than the
prohibition of positive acts .... The legal duty to act, therefore, is a
circumscribed and it must be positively laid down by the law. It is
possible for the law to provide that whoever does so-and-so shall be
punishable . . . ."

[Manslaughter by
omission - distinction between unlawful commission and omission –
existence of duty – advertence needed]
S and D allowed Stone's ill and unstable sister , Fanny, to live in their
house. Fanny was suffering from anorexia and her condition deteriorated,
until she became bed-ridden. She needed medical help, but none was
summoned and she eventually died in squalor, covered in bed sores and
filth.

Held: Because
they had taken Fanny into their home, they had assumed a duty of care for
her and had been grossly negligent in the performance of that duty. The
fact that Fanny was Stone's sister was merely incidental to this.

Geoffrey Lane LJ:

“The duty which the defendant has undertaken is a duty of caring for the
health and welfare of the infirm person. What the prosecution have to
provide is a breach of that duty in such circumstances that the jury
feel convinced that the defendant’s conduct can properly be described as
reckless, that is to say a reckless disregard of danger to the health
and welfare of the infirm person. Mere inadvertence is not enough.

The defendant must be proved to have been indifferent to an obvious risk
of injury to health, or actually to have foreseen the risk but to have
determined nevertheless to run it.’

[Omission - when an omission is an act -inconsistent approach by
courts]
D a landlady refused to replace a missing door key for the occupier of a
bed-sitting room in her house. He had to depend for the rest of his time
there on someone being in the premises to let him in. The continuing
refusal of a replacement key was an act “calculated to interfere with the
peace and comfort” of [the tenant] with the intent to cause him to give up
occupation of his room.

Held: There was conduct inin addition to the refusal to
provide a front door key and it seems not to have been argued that the
failure to provide a key was a mere omission.